James Iredell, Marcus, Answers to Mr. Mason's Objections to the New Constitution

1788Pamphlets 355--56

VII. Objection.

"By declaring all treaties the supreme law of the land,
the Executive and the Senate have, in many cases, an exclusive
power of legislation; which might have been
avoided by proper distinctions with respect to treaties, and
requiring the assent of the House of Representatives,
where it could be done with safety."

Answer.

Did not Congress very lately unanimously resolve, in
adopting the very sensible letter of Mr. Jay, that a treaty
when once made pursuant to the sovereign authority, ex vi
termini became immediately the law of the land? It seems
to result unavoidably from the nature of the thing, that
when the constitutional right to make treaties is exercised,
the treaty so made should be binding upon those who delegated
authority for that purpose. If it was not, what foreign
power would trust us? And if this right was restricted
by any such fine checks as Mr. Mason has in his imagination,
but has not thought proper to disclose, a critical occasion
might arise, when for want of a little rational confidence
in our own government we might be obliged to
submit to a master in an enemy. Mr. Mason wishes the [Volume 4, Page 41]
House of Representatives to have some share in this business,
but he is immediately sensible of the impropriety of
it, and adds "where it can be done with safety." And how
is it to be known whether it can be done with safety or not,
but during the pendency of a negotiation? Must not the
President and Senate judge whether it can be done with
safety or not? If they are of opinion it is unsafe, and the
House of Representatives of course not consulted, what
becomes of this boasted check, since, if it amounts to no
more than that the President and Senate may consult the
House of Representatives if they please, they may do this
as well without such a provision as with it. Nothing would
be more easy than to assign plausible reasons, after the
negotiation was over, to show that a communication was
unsafe, and therefore surely a precaution that could be so
easily eluded, if it was not impolitic to the greatest degree,
must be thought trifling indeed. It is also to be observed,
that this authority, so obnoxious in the new Constitution
(which is unfortunate in having little power to please some
persons, either as containing new things or old), is vested
indefinitely and without restriction in our present Congress,
who are a body constituted in the same manner
as the Senate is to be, but there is this material difference
in the two cases, that we shall have an additional
check, under the new system of a President of high personal
character chosen by the immediate body of the
people.